Citation Nr: 0814722
Decision Date: 05/02/08 Archive Date: 05/12/08
DOCKET NO. 00-22 766 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Houston,
Texas
THE ISSUE
Entitlement to service connection for a low back disability,
claimed as secondary to a service-connected lateral meniscus
tear of the right knee.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
J. N. Moats, Associate Counsel
INTRODUCTION
The veteran had active duty service from June 1961 to
September 1963.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a May 2000 rating decision by a
Regional Office (RO) of the Department of Veterans Affairs
(VA). The veteran testified at a Board video conference
hearing in May 2002. The Board remanded this matter for
further development in March 2004 and May 2006.
While the Board regrets further delaying appellate review of
this issue, the appeal is REMANDED to the RO via the Appeals
Management Center (AMC), in Washington, DC. VA will notify
the appellant if further action is required.
REMAND
The veteran is claiming service connection for low back
disability as secondary to his service connected lateral
meniscus tear of the right knee. The Board previously
remanded this issue in May 2006 for a VA examination to
ascertain the relationship, if any, between the veteran's low
back disability and his service-connected lateral meniscus
tear of the right knee. A VA examination was scheduled in
December 2007; however, the veteran failed to report. The
Board acknowledges that the veteran submitted a July 2007
private opinion by his treating physician, which indicated
that it was a greater than 50 percent chance that the
veteran's low back disability was caused by his knee and
ankle problems. However, this opinion does not appear to be
based on a review of the veteran's overall records and
history, and there is no supporting medical rational given.
Further, the Board notes that VA has not adopted the
"treating physician rule." White v. Principi, 243 F.3d 1378
(Fed. Cir. 2001).
Although the veteran failed to report for the last
examination and has not provided any reasons for this
failure, for the benefit of the veteran, the Board finds that
another VA examination should be scheduled to determine
whether the veteran's low back disability is proximately due
to or aggravated by the veteran's service-connected lateral
meniscus tear of the right knee pursuant to 38 C.F.R.
§ 3.310. See 38 C.F.R. § 3.159. The Board notes that while
it appears that the veteran was adequately notified of the
prior examination, the veteran's zip code was not provided in
the address on the letter scheduling the examination from the
VA Medical Center even though it is given elsewhere in the
claims file. In order to ensure that the veteran receives
proper notice of any future examination, the RO should ensure
that notice of the examination is sent to the veteran's
complete mailing address.
If the veteran fails to report again, the examiner should
still review the claims file and offer an opinion based on
that review. The Board stresses to the veteran, that while
VA has a duty to assist the veteran in the development of his
claim, the veteran has a duty to cooperate with VA. See Wood
v. Derwinski, 1 Vet.App. 190 (1991).
Accordingly, the case is REMANDED for the following actions:
1. The veteran should be scheduled for a
VA spine examination. Notice of the
examination should be sent to the
veteran's complete address. It is
imperative that the claims file be made
available to the examiner for review in
connection with the examination. Any
medically indicated tests, such as x-
rays, should be accomplished. After
reviewing the claims file and examining
the veteran, the examiner should respond
to the following:
a) Is it at least as likely as not
(a 50% or higher degree of probability)
that any current low back disability is
causally related to any injury documented
in the service medical records?
b) Is it at least as likely as not
(a 50% or higher degree of probability)
that any current low back disability is
proximately due to, or caused by, the
veteran's service-connected lateral
meniscus tear of the right knee?
c) Is it at least as likely as not
(a 50% or higher degree of probability)
that any current low back disability has
been aggravated by the veteran's service-
connected lateral meniscus tear of the
right knee?
If the veteran fails to report to the VA
examination, the examiner should
nevertheless review the claims file and
respond to the above questions.
2. Thereafter, the issue on appeal
should be
readjudicated. If the benefit sought on
appeal is not granted, the veteran and
his representative should be provided
with a supplemental statement of the case
and afforded the appropriate opportunity
to respond thereto. Thereafter, the case
should be returned to the Board for
further appellate consideration, if
otherwise in order.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet.App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).
_________________________________________________
ALAN S. PEEVY
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2007).